SCHEDULE OF LESSER INCLUDED OFFENSES COMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES

Transcription

1 SCHEDULE OF LESSER INCLUDED COMMENT ON SCHEDULE OF LESSER INCLUDED One of the difficult problems in instructing a criminal jury is to make certain that it is properly charged with respect to the degrees or categories of guilt that may be applicable to a given crime. The supreme court in Brown v. State, 206 So.2d 377 (Fla. 1968), described these categories as follows: 1. Crimes divisible into degrees 2. s to commit offenses 3. Offenses necessarily included in the offense charged 4. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Because it is often so difficult to determine these categories, the committee prepared a list of the offenses applicable to each of the crimes for which standard jury instructions had been drafted. At the same time, the committee recommended treating lesser degrees as category 3 or 4 offenses depending upon the offense and treating attempts as a category 4 offense, thereby eliminating the first two Brown categories as separate categories. In its opinion dated April 16, 1981, in which it approved the new standard jury instructions, the supreme court also approved the schedule of lesser included offenses and accepted the recommendation of the committee to consolidate the four Brown categories into two categories. The supreme court directed that the four categories should be renumbered and designated as follows: 1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses. 2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses. The court also directed that the appropriate Florida Rules of Criminal Procedure be amended to accommodate these changes. The categories of the offenses which appear on the schedule of lesser included offenses have been renumbered and designated according to the supreme court mandate. In determining the appropriate lesser offenses for inclusion in the table, the committee followed certain guidelines: 1. No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration. See Ray v. State, 403 So.2d 956 (Fla. 1981); State v. Carpenter, 417 So.2d 986 (Fla. 1982). 2. If the definition of the crime includes the attempt or the endeavor to commit the crime, there can be no separate offense of an attempt to commit that crime, e.g., uttering, forgery, grand theft second degree, delivery of controlled substance. 3. Certain crimes do not have attempts, e.g., culpable negligence, extortion, perjury, corruption by threat against public servant, resisting officer with violence, and conspiracy. 4. Except as stated above, attempts to commit crimes generally are included unless the evidence conclusively shows that the charged crime was completed. In such case, attempt should not be instructed. 5. Some statutes provide that the penalty for certain crimes is enhanced if certain events occur during their commission. For example, under F.S burglary is a felony of the first degree if the burglar makes an assault or is armed with explosives or dangerous weapons. If these events do not occur but burglary is committed in a dwelling occupied by human beings, the offense is a felony of the

2 second degree. All other burglaries are felonies of the third degree. Thus, if a defendant is charged with first degree burglary by virtue of having made an assault during the course of the burglary, the jury should be permitted to return a verdict for simple third degree burglary without the enhancement of the assault. In practice, this is similar to the concept of lesser included offenses, but since statutes of this type are couched in terms of enhancement, the schedule does not carry the lower degrees of the offenses proscribed by those statutes as lesser included offenses. 6. Under Knight v. State, 338 So.2d 201 (Fla. 1976), felony murder is included within a single indictment count of premeditated murder. Therefore, first degree felony murder should be given if requested by the state and if supported by the evidence, although it is not a lesser included offense. SCHELULE OF LESSER INCLUDED CAVEAT August, 2007 The committee wishes to advise all who refer to this chart of Lesser Included Offenses by statute, that it is out of date. The chart has not been updated since the Court approved it in 1998 [723 So. 2d 123]. Sometime after 1998, the committee began to include the lesser included offenses in a table following the individual instruction. Since that time, amendments to an instruction s lesser included offenses have been updated in the table on the instruction page. The committee is currently working on updating this chart. The corrections to the chart must be submitted to the Supreme Court for approval. Once approved, the new chart will be posted online and be updated each time an amended instruction is approved and the lesser included offenses have been changed. The committee recommends that you refer to the table of lessers included with each individual instruction and that you not rely on this chart until further notice. The Honorable Terry D. Terrell First Judicial Circuit Chair, Committee on Standard Jury Instructions in Criminal Cases

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4 (1) Driving under the influence (2) Felony DUI (b) prior convictions (3) DUI with damage (c)1 to property or person (3) DUI with serious (c) (3) (c)3 SCHEDULE OF LESSER INCLUDED DUI (1) DUI (1) DUI (3)(c)1 bodily injury DUI manslaughter DUI (1) DUI serious bodily injury (3)(c)2 DUI damage to person or property (3)(c) Vehicular homicide Bookmaking on grounds of permit holder (adapted from former )

5 782.04(1) First degree (premeditated) murder Second degree (depraved mind) murder (2) Manslaughter Second degree (felony) murder (3) Third degree (felony) murder (4) Vehicular homicide (Nonhomicide lessers) Culpable negligence (2) Aggravated battery (1) First degree (felony) murder (1)(a) & ed first degree (premeditated) murder Second degree (depraved mind) murder (2) Manslaughter second degree (depraved mind) murder (2) & voluntary manslaughter & Second degree (felony) murder (3) Third degree (felony) murder (4) (Nonhomicide lessers) Aggravated battery Aggravated assault Battery Assault Aggravated battery

6 782.04(2) Second degree (depraved mind) murder (3) Second degree (felony) murder Felony causing bodily injury Manslaughter Third degree (felony) murder (4) Vehicular homicide (Nonhomicide lessers) Culpable negligence (2) Aggravated battery Aggravated assault Battery Assault Third degree (felony) murder (4) Felony causing bodily injury (2) Felony causing bodily injury (3) (4) Third degree (felony) murder Manslaughter Vehicular homicide (Nonhomicide lessers) Aggravated assault Battery Assault Culpable negligence (1) Culpable negligence (2) Vehicular Homicide Reckless driving Assault Culpable negligence (1) Culpable negligence (2)

7 (1) (a) (1) (b) Aggravated assault Aggravated assault Improper exhibition of dangerous weapons or firearms Discharging firearms in public

8 Battery (1) Aggravated (a)1 battery (1) (a)2 Aggravated battery Improper exhibition of dangerous weapons or firearms (1) (b) Aggravated battery (2) Stalking (3) Aggravated Stalking (2) stalking (4) Aggravated stalking (2) Culpable negligence (2) Assault of law enforcement officer Stalking (2) Culpable negligence (1) Improper exhibition of dangerous weapon Violation of injunction for protection against domestic violence (4) (2) Battery of law enforcement officer (2)(c) Aggravated assault on law enforcement officer (2)(d) (2)(a) Aggravated battery on law enforcement officer Aggravated battery on person 65 years of age or older Assault on law enforcement officer (2)(a) Aggravated battery Battery on law enforcement officer (2)(b) Aggravated battery Battery on person 65 years of age or older (2)(c) Improper exhibition of dangerous weapons or firearms Discharging firearms in public Improper exhibition of dangerous weapons or firearms Discharging firearms in public Improper exhibition of dangerous weapons or firearms Discharging firearms in public

9 SECTION (2)(b) (2)(c) (2)(d) CHARGED Aggravated assault on person 65 years of age or older Battery on person 65 years of age or older Assault on person 65 years of age or Assault on person 65 years of age or older (2)(d) older Kidnapping False imprisonment False imprisonment Improper exhibition of dangerous weapons or firearms Discharging firearms in public (1)(b) (1)(a) (1)(a) (1) Carrying concealed weapons (2) Carrying concealed firearms Carrying pistol or repeating rifle without first obtaining license (1) Persons engaged in criminal offense, having weapons (2) Persons engaged in criminal offense, having weapons (may be applicable when concealed weapon is charged) Carrying concealed weapons (1) Improper exhibition of dangerous weapons (may be applicable when concealed firearm is charged) Carrying concealed firearm (2) Improper exhibition of dangerous firearms

10 Improper exhibition of weapon Discharging firearms in public (1) Possessing, throwing, making, placing, projecting, or discharging destructive device (2) Possessing, throwing, making, placing, projecting, or discharging destructive device (3) Possessing, throwing, making, placing, projecting, or discharging destructive device Possessing, throwing, making, placing, projecting, or discharging destructive device (1) Possessing, throwing, making, placing, projecting, or discharging destructive device (1) Possessing, throwing, making, placing, projecting, or discharging destructive device (2) (4) Possessing, throwing, making, placing, projecting, or discharging destructive device Threat to throw, project, place, or discharge any destructive device False reports of bombing False reports of bombing or arson or other violence to property owned by the State Possessing, throwing, making, placing, projecting, or discharging destructive device (1) Possessing, throwing, making, placing, projecting, or discharging destructive device (3) Possessing, throwing, making, placing, projecting, or discharging destructive device (2) False reports of bombing

11 Furnishing weapons to minors under 18 years of age, etc Selling arms to minors by dealers Shooting or throwing missiles in dwelling Possession of forbidden firearms Felons; possession of firearms unlawful; exception; penalty (2) (a) (b) Sexual battery victim under 12 Discharging firearm in public (may be applicable when concealed weapon is charged) Carrying concealed firearm (2) Carrying concealed weapon (1) Sexual battery (5) (1)(a) Aggravated battery (1)(a) (3) Sexual battery victim over 12 weapon or force (4) Sexual battery victim over 12 special circumstances Sexual battery (5) Sexual battery (5) Sexual battery (2)(b) Aggravated battery (1)(a) (1)(a) Sexual battery (4) (1)(a)

12 (5) Sexual battery victim over 12 without force Unnatural and lascivious act Exposure of sexual organs Unnatural and lascivious act Lewd, lascivious, or indecent assault or act upon or in presence of child Unnatural and lascivious act (1) Arson Arson (2) Criminal mischief (1)(b)1 Criminal mischief (1)(b)2 Criminal mischief (1)(b)3 Criminal mischief (2) Arson Fire bomb (1) Criminal mischief (b) (1) (b)2 Criminal mischief Criminal mischief (1)(b) (1) (b)3 Criminal mischief Criminal mischief (1)(b)1 Criminal mischief (1)(b) (2) Burglary with assault or battery or while armed Burglary (4) Aggravated battery Burglary (3) Trespass (2)(a) Trespass (2)(c)

13 810.02(3) Burglary of dwelling; Burglary of structure or conveyance with human being inside Burglary (4) Burglary (3) Trespass (2)(a) Trespass (2)(b) (4) Burglary Trespass (2)(a) Possession of burglary tools Trespass in structure or conveyance (except refuse to depart) Trespass on property other than structure or conveyance (2) Grand theft (a) first degree (property valued at $100,000 or more) (2) (b) (2) (c) Grand theft second degree (property valued at $20,000 or more but less than $100,000) Grand theft third degree Grand theft second degree (2)(b) Grand theft third degree (2)(c) (1), (2), (3) Petit theft first degree (2)(e) Petit theft second degree (3)(a) Grand theft third degree (2)(c) (1), (2), (3) Petit theft first degree (2)(e) Petit theft second degree (3)(a) Petit theft first degree (2)(e) Petit theft second degree (3)(a) Trade secrets Trade secrets Trade secrets Trespass to conveyance (2)(c)(6) (2) (d) (2) (e) Grand theft third degree Petit theft first degree Petit theft second degree (3)(a) Petit theft second degree (3)(a)

14 (3) Petit theft (b) (3) Petit theft (a) second degree (3) (c) Felony petit theft Petit theft first degree (2)(e) Petit theft (3) (b) Petit theft second degree (3)(a) Possession of altered property (1) Dealing in stolen property trafficking Grand theft third degree (2)(c) Petit theft (2) (e) Petit theft (3) (a) (2) Dealing in stolen property managing and trafficking (2)(a) Robbery with a firearm or deadly weapon Dealing in stolen property (1) Robbery with a weapon (2)(b) Robbery (2)(c) Petit theft (3) (a) Grand theft 1st degree (2)(a) Grand theft 2d degree (2)(b) Grand theft 3d degree (2)(c) Petit theft (2) (e) Aggravated battery Display of firearm Resisting a Merchant (6)

15 812.13(2)(b) Robbery with a weapon Robbery (2)(c) Petit theft (3) (a) Grand theft 1st degree (2)(a) Grand theft 2d degree (2)(b) Grand theft 3d degree (2)(c) Petit theft (2) (e) Aggravated battery Display of weapon (1) Resisting a merchant (6)

16 SECTION (2)(c) (2) (b) CHARGED Robbery Petit theft (3) (a) Grand theft 1st degree (2)(a) Grand theft 2d degree (2)(b) Grand theft 3d degree (2)(c) Petit theft (2) (e) Resisting a merchant (6) Grand Theft first degree (2)(a) Grand Theft second degree (2)(b) Grand Theft third degree (2)(c) Petit Theft first degree (2)(e) Battery Assault Aggravated Assault Carjacking Robbery (2)(c) Grand Theft (2)(c)6 Petit Theft (3) (a) Home invasion robbery Robbery (2)(c) Petit theft (3) (a) Burning to defraud insurer Sale of substance in place of a controlled substance Incest Petit theft (2) (e) (1)(a) Aggravated child abuse Child abuse (1) ; only under certain circumstances see Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987).

17 827.03(1)(b) (1)(c) (1)(d) Aggravated child abuse (3) Contributing to child delinquency or dependency or to child in need of services (2) Sexual performance by a child (3) Sexual performance by a child (4) Sexual performance by a child Sexual performance by a child (5) Child abuse (1) ; only under certain circumstances see Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987) Sexual performance by a child (5) Sexual performance by a child (5)

18 (5) Sexual performance by a child Forgery Uttering forged instrument Stopping payment; purchase of farm or grove products, except when uttering is charged under $ Stopping payment with intent to defraud, except when uttering is charged if farm or grove product under $150 Worthless check (2) (first degree misdemeanor) (2) Worthless checks, except when uttering is charged (2) under $ (4) Obtaining property by worthless checks Worthless check (2) Perjury not in official proceeding Perjury in official proceeding Perjury by contradictory statements False reports to law enforcement authorities False official statements (1) Bribery of public servant if only "give" is charged

19 Bribery if only "accept" is charged (1) Bribery by a public servant if only "give" or "accept" is charged Unlawful compensation for official behavior if only "give" or "accept" is charged Corruption by threat against public servant (1) Bribery in athletic contests (2) Bribery in athletic contests Resisting officer with violence Resisting officer without violence if only harm is charged only if give is charged only if accept is charged Resisting officer without violence Keeping gambling house (849.02) (849.02) Maintaining a gambling establishment Permitting gambling Agents, servants, etc., of keeper of gambling house Renting house for gambling purposes Renting space for gambling Permitting minors and persons under guardianship to gamble Lottery (1)(f) Lottery (1)(k) Lottery Lottery (1)(f) Lottery (1)(k) Lottery Lottery (1)(f) Lottery (1)(k) Lottery Lottery (1)(f) Lottery (1)(k) Permitting gambling on billiard or pool table by holder of license Playing at games of chance by lot

20 Gambling (1)(a) Lottery Lottery (1)(f) Lottery (1)(g) Lottery (1)(h) Lottery (1)(i) Lottery (1)(j) Lottery (1)(k) Playing at game of chance by lot Gambling devices, etc (1)(b) Lottery Lottery (1)(f) Lottery (1)(g) Lottery (1)(h) Lottery (1)(i) Lottery (1)(j) Lottery (1)(k) Gambling devices, etc (1)(c) Lottery Lottery (1)(f) Lottery (1)(g) Lottery (1)(h) Lottery (1)(i) Lottery (1)(j) Lottery (1)(k) Gambling devices, etc (1)(d) Lottery Lottery (1)(f) Lottery (1)(g) Lottery (1)(h) Lottery (1)(i) Lottery (1)(j) Lottery (1)(k) Playing at games of chance by lot Gambling devices, etc (1)(g) Lottery (1)(h) Lottery (1)(k) Lottery

21 Betting (1) Bookmaking and (2) (1)(a) Sale, manufacture, delivery or possession with intent to sell, manufacture or deliver controlled substance, except when delivery is charged (3) if delivery of cannabis is charged; (6)(b) if possession of cannabis is charged; (6)(a) if possession is charged and offense would be a second degree felony (1)(b) Sale or delivery or possession of more than 10 grams of controlled substance Sale or delivery of controlled substance (1)(a) under (1)(a)1, except when delivery is charged (6)(a) if possession is charged (1)(c) (1)(d) Sale, manufacture, delivery, etc. near public or private elementary, middle or secondary school Sale, manufacture, delivery, etc. near a college, university, other post-secondary educational institution or public park Sale, manufacture, delivery, etc (1)(a) Sale, manufacture, delivery, etc (1)(a), except when delivery is charged (6)(a) if possession is charged and the offense would be a second degree felony under (1)(a) (6)(b) if possession of cannabis is charged (3) if delivery of cannabis is charged, except when delivery is charged (6)(a) if possession is charged and the offense would be a second degree felony under (1)(a)1; (6)(b) if possession of cannabis is charged; (3) if delivery of cannabis is charged

22 SECTION (2)(a) CHARGED Purchase or possession with intent to purchase controlled substance (2)(b) Purchase in excess of 10 grams of a controlled substance (3) Delivery without consideration not more than 20 grams of cannabis (4) Delivery of controlled substance to person under 18 years old, etc (5) Bringing controlled substance into state (2)(a) purchase of less than 10 grams ; (6)(a) if possession is charged and the offense would be a second degree felony under (2)(a) (6)(b) if possession of cannabis is charged (1)(a); (3) if delivery of cannabis is charged (6)(a); (3) if delivery of cannabis charged; (6)(b) if possession of cannabis charged (6)(a) (6)(b) (6)(c) (7) (a)1, 2, 3, 4, 5, 6, 7, 8, 10 and (7) (a)9 Possession of controlled substance Possession of not more than 20 grams of cannabis Possession in excess of 10 grams of controlled substance Distribute or dispense a controlled substance, etc. Obtaining controlled substances by fraud Possession of less than 10 grams (6)(a) ; (3) if delivery of cannabis charged; (6)(b) if possession of cannabis charged (6)(b) if possession of cannabis charged

23 SECTION (1) (a) CHARGED Trafficking in cannabis Trafficking offenses requiring lower quantities of cannabis (1)(a)1 and 2 (but not conspiracy), except when delivery is charged (1)(a) if sale, manufacture or delivery is charged (2)(a) if purchase is charged Bringing cannabis into state (5) Possession of cannabis (6)(a) (6)(b) if less than 20 grams of cannabis Delivery of less than 20 grams of cannabis (3) (1) (b)1& (1) (c)1&2 Trafficking in cocaine Trafficking in illegal drugs Trafficking offenses requiring lower quantities of cocaine (1)(b)1 Trafficking offenses requiring lower quantities of illegal drugs (1)(c)1 (but not conspiracy), except when delivery is charged; (1)(a) if sale, manufacture or delivery is charged; (2)(a) if purchase is charged; Bringing cocaine into state (5); Possession of cocaine (6)(a). (but not conspiracy), except when delivery is charged; (1)(a) if sale, manufacture or delivery is charged; (2)(a) if purchase is charged; Bringing same illegal drug as charged into state (5) Possession of same illegal drug (6) (a).

24 SECTION (1) (d) (1) (e)1 CHARGED Trafficking in phencyclidine Trafficking in methaqualone Trafficking offenses requiring lower quantities of phencyclidine (1)(d)1.a and b Trafficking offenses requiring lower quantities of methaqualone (1)(e)1.a and b. (but not conspiracy), except when delivery is charged (1)(a) if sale, manufacture or delivery is charged (2)(a) if purchase is charged Bringing phencyclidine into state (5); Possession of phencyclidine (6)(a) (but not conspiracy), except when delivery is charged (1)(a) if sale, manufacture or delivery is charged; (2)(a) if purchase is charged Bringing methaqualone into state (5) Possession of methaqualone (6)(a) (1) (f)1 Trafficking in amphetamine (1) Possession of drug paraphernalia (2) Delivery, possession with intent to deliver, or manufacture with intent to deliver drug paraphernalia Trafficking offenses requiring lower quantities of amphetamine (1)(f)1.a & b (but not conspiracy), except when delivery is charged (1)(a) if sale, manufacture or delivery is charged; (2)(a) if purchase is charged; Bringing amphetamine into state (5); Possession of amphetamine (6)(a), except when delivery is charged

25 (3) Delivery of drug paraphernalia to a minor (4) Advertisement of drug paraphernalia Unlawful possession, etc., of listed chemical (1) RICO Use or investment of proceeds from pattern of racketeering activity (1) RICO Use or investment of proceeds from collection of unlawful debt (2) RICO Acquisition or maintenance through pattern of racketeering activity (2) RICO Acquisition or maintenance through collection of unlawful debt (3) RICO Conduct or participation in an enterprise through collection of unlawful debt (3) RICO Conduct or participation in an enterprise through a pattern of racketeering activity (4) Conspiracy to engage in pattern of racketeering activity

26 Escape Contraband in state correctional institution Possession of less than 20 grams cannabis (6)(b) Contraband in county detention facilities Possession of less than 20 grams cannabis (6)(b)